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Saturday, September 05, 2015

The least dangerous branch of government

i) On paper, we have separation of powers. Now, humans being what they are, the temptation of each branch is to use the legitimate power it has to gain illegitimate power at the expense of the other two branches. We have this perennial tug of war where one branch attempts to augment its power by taking power away from another branch, or vice versa.

Within limits, the system can survive. But ultimately, separation of powers is a honor system. It depends on each branch exercising self-restraint. If one or more branches refuse to play by the rules, then the system breaks down. It becomes unworkable.

When that happens, moreover, there may be no solution within the system. You can only have checks and balances on abuse of power if the abusive branch honors the checks and balances.

ii) To my knowledge, one function of the courts is to adjudicate between conflicting laws. You can have conflicting laws between state and Federal statutes, as well as conflicting Federal statues. Or conflicts between statutory law and the regulations promulgated by executive agencies.

In case of conflict, the court may have to decide which law prevails. In ruling in favor of a litigant, it must pick which law prevails.

Likewise, the Constitution is the supreme law of the land. The courts must interpret the Constitution, just like the courts must interpret state and Federal statutes. So, for instance, you might have a conflict between state law and the US Constitution. That has to be resolved.

In that respect, I think judicial review has some validity. This is reinforced by the fact that, in some cases, Federal law trumps state law. In case of conflict, I can understand why Federal judges might have the authority to strike down state laws.

iii) Even in these instances of judicial review, judges need to act in good faith. If they abuse their authority by using a case as a pretext to strike down a state law on ideological grounds, then that delegitimates the ruling. And it becomes a question of whether a state or another branch of gov't should acquiesce to that ruling for the sake of stability.

iv) I'd add that (ii) that has limitations, given Federalism. For instance:

The U.S. Constitution grants the federal government with power over issues of national concern, while the state governments, generally, have jurisdiction over issues of domestic concern. While the federal government can enact laws governing the entire country, its powers are enumerated, or limited; it only has the specific powers allotted to it in the Constitution. For example, Article I, Section 8 of the Constitution grants Congress the power to levy taxes, mint money, declare war, establish post offices, and punish piracies on the high seas. Any action by the federal government must fall within one of the powers enumerated in the Constitution.

v) Mind you, I don't think it's incumbent on the court has to fix vague or conflicting laws. The court can send it back to Congress or the legislature. Say it's up to Congress or the legislature to rewrite the law to eliminate the conflict or eliminate the ambiguity.

vi) Ever since FDR, we've had a proliferation of executive agencies that issue endless regulations. These are promulgated, not by elected officials, who are answerable to the voter, but by faceless unaccountable bureaucrats.

As such, the only recourse a private business or private citizen has is to challenge it in court. To that extent, I can appreciate why judges might have the authority to strike down regulations of executive agencies. These have the force of law, yet they lack the legitimacy of statutory law, which was the product of legislators, enacting the will of the electorate–at least in theory.

vii) Of course, one partial solution is to ax some of these agencies. Likewise, instead of Congress merely authorizing an executive agency to do something, Congress could and should detail what the agency is required to do.

viii) Then there's the stickier question of whether the judiciary should have the right to strike down acts of Congress. To discharge its Constitutional duties, each branch of gov't must interpret the Constitution. The executive branch must construe what the Constitution has to say about the jurisdiction of the executive branch. Ditto: the judicial and legislative branches. Jefferson had an interesting theory:

"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." —Thomas Jefferson to Spencer Roane, 1819. ME 15:214

On that view, as I understand it, each branch might be at liberty to disregard how the other two branches interpret the Constitution when it concerns actions that don't require the cooperation of the other branches. That wouldn't be the same thing as striking down an act of Congress. Rather, a judge would refuse to take that into account when ruling for or against a litigant. It would rule on the basis of the judge's own understanding of the Constitution, or refrain from ruling at all unless the Constitution speaks to that particular issue.

However, I'm not sure how practical that is. At most, that would only work in cases where the court doesn't need the cooperation of the executive for the ruling to take effect. And in many cases, moreover, the Constitution doesn't specify a legal remedy. That's why we have statutory law.

ix) Thus far I've been using examples where the court has a legal frame of reference. A conflict between one law and another. Sometimes, however, the Supreme Court strikes down laws when no other preexisting law forms the standard of comparison. It isn't picking one law over another. Rather, it fabricates a right.

One tactic is to build on a false premise. The use of dubious precedents to justify a lawless ruling.

x) This generates a dilemma. To disregard judicial rulings has a destabilizing effect. After all, we do need a judiciary branch. It must have authority to do its job. Taken too far, if you flout judicial rulings you end up with a banana republic.

However, that must be offset by the danger of judicial despotism. A runaway judiciary is just as threatening to a democratic republic as nullification. So there are tradeoffs. Separation of powers requires a degree of judicial independence, but if that's abused too often it will become tyrannical.

And this hazard isn't confined to the judiciary. Each branch of gov't has the potential to go rogue. So we have the same tradeoffs. When does the risk of tyranny outweigh the risk of anarchy? When does the risk of anarchy outweigh the risk of tyranny?

It's like human shields. If the enemy puts military assets in civilian population centers, then dares you to defend yourself by bombing civilians, it has deliberately taken the most humane military options off the table. What's left is a choice between bad and worse.

Likewise, if one branch of gov't flagrantly abuses its authority, there may be no good solution. The remaining options all have potentially dire downsides. There may be no political solution, no redress within the system itself, if the internal strain becomes too great.